The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3404-18T3
PATRICK MALONE,
Petitioner-Respondent,
v.
PENNSAUKEN BOARD OF
EDUCATION,
Respondent-Appellant.
______________________________
Submitted January 30, 2020 – Decided July 28, 2020
Before Judges Suter and DeAlmeida.
On appeal from the State of New Jersey Department of
Labor and Workforce Development, Division of
Workers' Compensation, Case No. 2013-16505.
Capehart & Scatchard, PA, attorneys for appellant
(John H. Geaney, of counsel; Adam M. Segal, on the
brief).
Albert J. Talone, attorney for respondent.
PER CURIAM
Respondent Pennsauken Board of Education (Board) appeals from the
March 1, 2019 order of a judge of compensation denying its motion for an order
reimbursing the benefits and costs it paid to petitioner Patrick Malone and his
attorney pursuant to an order that we later reversed. We reverse and remand for
further proceedings.
I.
The following facts are derived from the record. Malone filed a claim
against the Board for workers' compensation benefits, alleging an occupational
exposure from his employment caused him a permanent disability. After trial,
a judge of compensation entered an order awarding Malone temporary and
permanent disability benefits, as well as costs.
The Board filed an appeal from the order. Its motions for a stay of the
order were denied by the judge of compensation and this court. When denying
the stay, the judge of compensation explained in an oral opinion:
I'm going to deny the [m]otion to [s]tay. I do believe
your argument is that in the event the Appellate
Division does overturn my decision that it would be
difficult for you to recoup your money. Petitioner
needs to be aware of the fact that those monies would,
in fact, have to be repaid in the event that the Appellate
Division reverses my decision . . . .
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While its appeal was pending, the Board paid Malone both a lump sum
and weekly benefits totaling almost $117,000. In addition, the Board paid
Malone's attorney $24,247.50.
On June 29, 2018, we reversed the judge of compensation's order,
concluding it was based on a net expert opinion. Malone v. Pennsauken Bd. of
Educ., No. A-3181-16 (App. Div. June 29, 2018).
The Board thereafter demanded Malone and his counsel return the
amounts paid under the trial court's reversed order. They refused to return any
of the Board's funds.
The Board filed a motion with the judge of compensation for
reimbursement of all funds paid pursuant to the reversed order. According to
the Board, it intended to obtain an order that could be docketed in the Superior
Court as a judgment to facilitate collection against Malone and his counsel.
A judge of compensation denied the Board's motion. The judge explained
her decision as follows:
I do believe that once the case is appealed, the
Appellate Division, if they accept it, they have
jurisdiction. In this case[,] the decision was reversed,
it was not remanded. The issue of repayment was not
addressed by the Appellate Division. But I have no
statutory authority to do anything with the Malone
matter at this point in time, because the Appellate
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3
Division still, in my mind, has jurisdiction over this
matter.
....
[T]herefore[,] I am going to deny the motion for
reimbursement of the award based on jurisdiction, since
this court lacks jurisdiction.
The judge of compensation also questioned whether, even if we had remanded
the Board's appeal, she would have the statutory authority to order
reimbursement. On March 1, 2019, the judge of compensation entered an order
denying the Board's motion for reimbursement.
This appeal followed. The Board makes the following arguments:
POINT I
THE JUDGE OF COMPENSATION HAS
JURISDICTION TO ENTER AN ORDER
REQUIRING PETITIONER AND PETITIONER'S
COUNSEL TO REPAY THE AWARD THAT WAS
SUBSEQUENTLY OVERTURNED.
POINT II
IF THE TRIAL COURT DOES NOT HAVE
JURISDICTION, THIS COURT SHOULD ENTER AN
ORDER REQUIRING PETITIONER AND
PETITIONER'S ATTOR[N]EY TO REPAY ALL
MONIES PAID UNDER THE ERRONEOUS ORDER.
Malone makes the following argument:
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RESPONDENT'S NOTICE OF MOTION FOR
REIMBURSEMENT/RECOUPMENT OF AWARD
PAID WAS UNTIMELY FILED PURSUANT TO
RULE 2:11-6 AND AS SUCH THE JULY 29, 2018
DECISION OF THE APPELLATE DIVISION IS
FINAL.
II.
As a general rule, once an appeal is perfected, the trial court is divested
of jurisdiction to act, except in the limited circumstances provided in Rule 2:9-
1(a). We have the authority to remand an appeal to the trial court for appropriate
action, with or without retaining jurisdiction. R. 2:9-1(b).
Here, our original opinion reversed the trial court order directing the
Board to pay Malone benefits and costs. Whether the Board was entitled to
reimbursement of what it paid under the reversed order was not addressed in the
parties' briefs.
We note that a judge of compensation has the statutory authority to
"modify any award of compensation, determination and rule for judgment" it
has issued. N.J.S.A. 34:15-57. This provision vests in the Division of Workers'
Compensation and its judges "discretionary power over its own judgments as is
inherent in other courts." Sassarro v. Wright Aeronautical Corp., 24 N.J. Misc.
57, 60 (C.P. 1946). We view the statute to vest the judge of compensation with
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the authority to enter a judgment against Malone and his counsel for the amounts
the Board paid to them under the order we later reversed.
In addition, we have considered Malone's argument that the Board's
motion for reimbursement was, in effect, an untimely motion for reconsideration
of this court's opinion. We conclude the argument lacks sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
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